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The Juridical Signifcance of the Declaration

by Francis G. Morrisey

Francis G. Morrisey, OMI, holds licentiates in both philosophy and theology as well as a doctorate in canon law and an M.A. in religion. He was at the time the Dean of the Faculty of Canon Law at St. Paul University in Ottawa. He has been the editor of “Studia Canonica” since 1967 and has served as president of the Canadian Canon Law Society.

The statement issued by the Sacred Congregation for the Doctrine of the Faith is identifed as a “declaration.” In order to understand better the signifcance of this term, it is important to remember that the word “declaration” is used in many senses.

In general, we can state that a declaration is an interpretation of existing law or facts, or a reply to a contested point of law. There are at least four basic types of declarations.(1)

The frst type is known simply as a declaration. Generally speaking, it is not a new law, and must be interpreted in the light of existing legislation. One such declaration that was misunderstood in recent years was the joint declaration of the Sacred Congregation for the Clergy and the Sacred Congregation for the Discipline of the Sacraments on the question of first confession and frst communion (May 24, 1973).(2) Since this particular text was simply presented as a declaration, it did not constitute new law. If the legislator had intended it to be otherwise, he would have used a different form of pronouncement, such as a “decree.”

The second type of declaration is the authentic interpretation or declaration. A very important example of this type of document was the declaration of the Sacred Congregation for the Doctrine of the Faith, June 26, 1972.(3) This was proposed as an authentic declaration, and, consequently, did not require further promulgation (can. 17, par. 2) and was retroactive. This particular declaration was concerned with norms relative to the return of priests to the lay state.

The third type of declaration is the extensive declaration, which, to a certain extent, modifes the law. This type must be promulgated according to the norms of law and is not retroactive. There have not been too many examples of this type of declaration in recent years.(4)

The Roman Congregations have also lately been issuing dec/arations on moral issues, such as the one on sexual ethics, December 29, 1975.(5) These declarations are not of the legislative order, but pertain more directly to matters of faith and morals.

In addition to these types of declarations, the word is also used in other juridical circumstances. In cases of procedure, a declaration may be used to state that a penalty has already been imposed by the law; in cases of nullity, a declaration of nullity states that a given act is null and void and has been so from the beginning.

With the exception of the extensive declaration, all of these documents have one thing in common: they do not create new law, but simply restate existing legislation and apply it to new circumstances. The same can be said about the present Declaration regarding the ordination of women to the ministerial priesthood. The law has not been changed; however, new or different reasons are presented in an attempt to justify maintaining the legislation as it exists. This particular statement would be placed, it seems, in the frst category of declarations.

In one sense, the document changes nothing in the legislation regarding the ordination of women to the ministerial priesthood. On the other hand, the legal or juridical position is reinforced by making the legislator’s intention known and by trying to clarify any doubts about his position. However, this very clarification can raise some other problems that must be considered. One of these is: what does the document signify or represent? It is a re-statement of a juridical norm, but a re-statement based on arguments which are not primarily of the juridical order.

From a legislative point of view, it would be oversimplistic to state that because the Declaration was not preceded by some form of public universal consultation, it does not have legal value. Indeed, it is not presented primarily as a juridical text. In fact, with very few exceptions, the present legislative system of the Church ,does not require previous consultation with specifically designated persons.(6) Or course, any good legislation will not be the result of arbitrary decisions, but will be based upon a consensus expressing what is felt best for the public good. It goes without saying, though, that the mere fact of consensus does not always make a thing right or opportune on a long-range basis.

Looking at the subject matter of this Declaration, and replacing it in its broad juridical context, it would have been inopportune even to consider this particular aspect of the status of women in the Church until the more fundamental points of basic equality between men and women have been settlcd in other areas of ecclesiastical legislation.

To ask whether the document is binding is another question. A declaration generally has no more juridical effect than the law which it wishes to clarify. In this instance, the law itself is quite clear and positive (can. 968, par. 1), and concerns validity. Therefore, just as the law is binding, the Declaration is binding as a source of interpretation. The question to be asked is whether the ordination of women is only a matter of ecclesiastical law, or whether it is also a matter related to the Divine will. The presumption had been in the past that the prescription allowing only males to receive ordination was not simply of ecclesiastical law.(7) Like any other presumption, however, it stands until it is reversed. The presumption could only be reasonably reversed, if at all, after serious, objective study and investigation. This is not a matter of a few months, or even of a few years. Conclusions of research have to be tested and verifed. Likewise, in a question of such particular importance, these conclusions would have to be accepted by the teaching Magisterium of the Church as part of the Christian heritage.

By its very nature as a declaration, the statement does not close the door definitively on the question. It simply states that at the present time, “the Church, in fidelity to the example of the Lord, does not consider herself authorized to admit women to priestly ordination.”(8) the text states that “the various arguments capable of clarifying this important problem have been submitted to a critical examination,”(9) but it does not refer to the manner in which these arguments were examined or evaluated. The conclusion, in the light of many pronouncements of the Holy Father himself,(10) was to be expected. It might possibly be questioned whether the matter was completely and exhaustively studied; but study alone is not the only way of understanding truth.

Looking to the future, it could be stated that since the Declaration calls for a “deepening understanding of the respective roles of men and of women,” that much can be done to help clarify the juridical status of all the members of the Church. The Declaration will certainly be a stimulus to this type of work, and this will probably be its greatest contribution to the development of the question.

4. One example of such an extensive declaration is found in the response of the Sacred Congregation of the Holy Office, November 16, 1934, on the application of certain prescriptions of canon 2367 on the absolution of the accomplice to other cases not immediately envisaged in the penal legislation of this particular canon; cf. A.A.S., 26(1934), p. 634. Another example of such a declaration, although it is not specifically presented as such, is to be found in a response of the Pontifical Commission for the Interpretation of the Decrees of the Second Vatican Council, February 14, 1974, in A.A.S. 66(1974), p. 463, on the necessity of motivating decrees of ratification in second instance in cases of nullity of marriage.

5. The English translation of this declaration may be found in Origins, 5(1975-1976), pp. 485, 487-,494. The response of the Sacred Congregation for the Doctrine of the Faith regarding Sterilization, March 13, 1975, and made public in May, 1976 (cf. Origins, 6(1976-1977), pp. 33, 35) is a response, and not a declaration since it was not intended for the general public.

6. In some instances, a legislator is required to have the deliberative vote of his council before proceeding to perform certain acts (e.g. certain specified fnancial transactions; cf. cans. 1530-1532, etc.): in other instances, a consultative vote is required (e.g., in relation to certain appointments, to admission to religious Institutes, etc.; cf. cans. 543, 403, etc.); finally, in some cases, no form of consultation is prescribed, although it is rarely prohibited; the norms regarding the selection of Bishops prohibit consultation of groups, although the individuals concerned may be consulted—cf. Norms of March 25, 1972, Art. Xll, 1, in A.A.S., 64(1972), p. 390.

7. For an example of such arguments, cf. F.M. Cappello, S.J., Tractatus Canonico-Moralis de Sacramentis, IV, De Ordine (Rome: Marietti, 1947), p. 249. Cappello, in this instance, states that we must be rather cautious about invoking such reasons.

8. Cf. Declaration, par. 5.

9. Cf. ibid., par.4.

10. Cf. letter of Pope Paul VI, November 30, 1975, in A.A.S., 68(1976), pp. 599-600, to the Archbishop of Canterbury.

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